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US Bank National Association v. Gioia

Supreme Court, Queens County

November 6, 2013

US Bank National Association, AS TRUSTEE FOR CERTIFICATE HOLDERS OF BANC OF AMERICA FUNDING CORPORATION 2009-FT1 TRUST, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2009-FT1, Plaintiff,
v.
Neil R. Gioia, LAUREN N. GIOIA, BANK OF AMERICA, N.A., DISCOVER BANK, and "JOHN DOE No.1" to "JOHN DOE No.10, " the last 10 names being fictitious and unknown to plaintiff, the persons or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the verified complaint, Defendants.

ROBERT J. MCDONALD, J.

The following papers numbered 1 to 9 were read on this motion by plaintiff, U.S. BANK NATIONAL ASSOCIATION, for an order pursuant to CPLR 3217(b) and 6514(d) discontinuing the instant action without prejudice and canceling the lis pendens; and the cross-motion of defendants NEIL R. GIOIA and LAUREN N. GIOIA for an order compelling the plaintiff to toll the interest accruing on the loan since the commencement of the action and enjoining the plaintiff from collecting attorney's fees incurred after the commencement of the action:

Papers Numbered

Notice of Motion-Affirmation-Affidavits-Exhibits....1 - 3

Cross-Motion-Affirmation in Opposition-Affidavits-Exhibits4 - 7

Affirmation in Opposition to Cross-Motion/Reply.8 - 9

Upon the foregoing papers it is ordered that this motion is determined as follows:

This is a motion made by plaintiff, U.S. BANK NATIONAL ASSOCIATION, seeking to discontinue the mortgage foreclosure action for the property located at 39-26 50th Street, Woodside, New York. The property consists of a two-family house in which defendants, NEIL R. GIOIA and LAUREN N. GIOIA, a father and daughter, reside with their spouses in separate residences.

Based upon the record before this court, on July 11, 2003, the defendants, NEIL R. GIOIA and LAUREN N. GIOIA, entered into a note and mortgage in favor of Fleet National Bank to secure payment of the principal sum of $250, 000. The note and mortgage were subsequently assigned to the plaintiff. The defendants are alleged to have defaulted in payment of the mortgage commencing on September 17, 2010 at which time the plaintiff accelerated the mortgage and elected to have the entire principal sum and all amounts still owing under the Note be due and payable in full immediately.

Plaintiff subsequently brought an action to foreclose its mortgage by filing a summons, complaint and lis pendens on November 9, 2011. Issue was joined by service of defendants' timely answer dated November 21, 2011.

Plaintiff now moves for an order discontinuing the action without prejudice and canceling the lis pendens filed against the premises. In support of the motion counsel states that it is in the best interests of all parties and in the interests of judicial economy to discontinue the action without prejudice.

Defendants oppose the motion to discontinue and cross-move for an order compelling plaintiff to toll the interest accruing on the loan as of the commencement of the action and not permitting additional interest to accrue on the loan until plaintiff completes an accurate review of defendants' eligibility for a permanent loan modification and for an order enjoining plaintiff from collecting attorney's fees incurred after the commencement of the action.

In support of the cross-motion, defendants' counsel, Aisha A. Baruni, Esq., states that the instant action was commenced by plaintiffs in November 2011. The defendants filed a timely answer. Subsequently the plaintiff did not take any action to prosecute the case and did not file an RJI which would have triggered the scheduling of a settlement conference pursuant to CPLR 3408 and did not file an affirmation pursuant to AO 431/11 affirming that a representative of the Bank confirmed the factual allegations of the pleadings. As a result of the plaintiff taking no action to prosecute the action, the case remained on the "shadow docket" of this Court until a conference was ordered by the court. On April 15, 2013, the defendants attended a conference at which time the matter was referred for a settlement conference in the Residential Foreclosure Settlement Part for June 28, 2013. According to the affirmation of defendants' counsel, the Bank informed the defendants at the conference that they intended to discontinue the action and sought a stipulation of discontinuance. However, the defendants requested that the plaintiff not discontinue the action because the defendants wanted to participate in settlement negotiations in the Settlement Conference Part and sought a response to their outstanding application for a loan modification. Counsel states that she informed the plaintiff's attorney that the Gioias had a pending loan modification application, however, plaintiff's counsel did not know the status. The Court Referee ordered the plaintiff to make a determination as to loan modification by August 5, 2013. On July 1, 2013 the defendants filed an RJI and requested a further settlement conference. A settlement conference was then scheduled for September 23, 2013.

When no response from plaintiff was forthcoming, counsel Baruni submitted an updated loan modification application on August 6, 2013. On September 23, 2013 the Referee set another deadline of October 15, 2013 for plaintiff to make a decision on defendant's application and set a new conference date for January 15, 2014. However, the plaintiff did not respond to the loan modification ...


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